JAFER SHAH Versus THE STATE

Jafer Shah, Arif Shah and Sardar Shah residents of Chak No. 108/9-L, tehsil Pakpattan, district Sahiwal, have been tried and convicted by Additional Sessions Judge, Dera Ghazi Khan, Camp at Bahawalnagar, under section 302/34, P.P.C. who vide judgment dated 22-2-1978, sentenced them to imprisonment for life on each count for the murder of Jeerey Shah and his wife Mst. Sharifan. The convicts have challenged their conviction and sentence through filing the instant appeal (Cr.A. No. 13 of 1978/BWP). They have also appealed against the same judgment of filing separate appeals (Cr.A. Nos. 28, 29 and 30 of 1978/BWP) through jail. All the four appeals shall be disposed of by this single judgment as they arise out of the same order of conviction.

2. The occurrence took place on the night between 24/25-9-1973 at Bhaini Mohalanwali near the tubewell of Abdul Hameed Arain in village Anokh Singh, district Bahawalnagar, about 8 miles from Police Station Sadar, Bahawalnagar. Report Ex. P.L. was made at the police station by Muhammad Ali Shah, complainant (P.W. 13), brother of Jeerey Shah (deceased), at 7-45 a.m. on 25-9-1973 recorded by S.I. Muhammad Munawwar (P.W. 17).

3. The prosecution case briefly is that Jeerey Shah (deceased) was married to the sister of Arif Shah (appellant) A few years before the occurrence he abducted Mst. Sharifan (deceased) and married her. In the days of occurrence they were living at Bhaini Mohalanwali in the vicinity of village Anokh Singh where there was no Abadi around their residence. Some days before the occurrence, Muhammad Ali Shah brother of Jeerey Shah with his nephew Zakir Shah came to see him. On the night of occurrence, Jeerey Shah and his wife Mst. Sharifan (both the deceased) slept in front of their Jhuggi while Muhammad Ali (P.W. 13) and his nephew Zakir Shah P.W. (not produced) slept at some distance. At mid-night Muhammad Ali and Zakir Shah got up hearing the report of a gunfire and saw in the light of a lantern burning in the courtyard an unidentified person of normal size and moderate built with a .12 bore pistol in his hands. He fired at Jeerey Shah and killed him and then caught hold of Mst. Sharifan and dragged her away forcibly. Muhammad Ali and Zakir Shah did not go further due to fear of life. Muhammad Ali reported the matter at Police Station Sadar, Bahawalnagar next morning at 7-45 a.m., leaving the dead body of Jeerey Shah in the custody of Zakir Shah.

4. S.I. Muhammad Munawwar (P.W. 17) after registration the case went to the spot. He prepared the inquest report Ex. PK of the deceased and sent the dead body for post-mortem examination under police escort. He also collected blood-stained earth from the spot under memo Ex. PF. Lantern P. 3 was also seized under memo Ex. PG.

5. Dr. Muhammad Hanif, Medical Officer, DHQ Hospital Bahawalnagar, on 25-9-1973 at 3-30 p.m., conducted post-mortem examination on the dead body of Jeera Shah, vide post-mortem report Ex. PX, and found a gunshot wound measuring 2" x 2" with inverted margins (wound of entrance) on the right upper chest at the middle right clavicle bone causing fracture of right clavicle bone and right first and second rib causing injury to the right lung, heart and left lung, and six gunshot wounds on the left back below left scapular bone, each wound measuring 1/4" x 1/4" x deep to lungs in an area of 2" x 2" with everted margins (wounds of exit). The doctor removed two pellets from the anterior chest wall just above 4th and 5th sterno-chondral junctions, one pellet from anterior and medial side of middle lobe of right lung and one pellet from the pericordium. In the opinion of the doctor, the death had occurred due to shock and haemorrhage caused by injury No. 1 which was sufficient in ordinary course of nature to cause the death. The deceased had died instantaneously on receiving injury No. 1 and probable time between death and post-mortem was about 15 hours.

Since Dr. Muhammad Hanif had left for Algeria and his attendance could not be procured without unreasonable expense and delay in the near future, therefore, the post-mortem report Ex. PX was got proved by Muhammad Rashid Khan, Clerk of D.H.Q. Hospital, BahawaInagar (PW 22) who was well-conversant with his handwriting.

6. On 26-9-1973 Ghulam Muhammad (PW 3) Gate Keeper of Bridge Fordwah Canal made a report Ex. PC at Police Station Bahawalnagar, that a dead body was stuck up near the bridge. A.S.[. Muhammad Sharif (P.W. 15) went there and brought out the dead body which was of a female. It had extensive injuries on the face, nose had been cut off and was decomposed and mutilated. The dead body was identified by Mst. Nawab Bibi (PW 10) wife of Jeera Shah's brother and Mst. Khurshid Bibi (P.W. 11) sister of Jeera Shah, as that of Mst. Sharifan, from certain marks saying that she had longer fingers than thumb of her feet and one of her teeth was comparatively small and blackish. A.S.I. Muhammad Sharif (P.W. 15) got the dead body post-mortemed and Dr. Muhammad Arif Saeed (P.W. 16) who found two injuries on her person. Under injury No. 1, both eyes were removed,- nose cut and skin all over the face including both cheeks and forehead was removed while under injury No. 2 first finger of her right hand had been fractured.

7. Arif Shah, appellant, was arrested by S.I. Ali Raza Shah (P.W. 21) on 22-10-1973. He was arrayed in an identification parade supervised by Mr. Muhammad Munir Badar, Magistrate 1st Class (PW 1) on 10-7-1974 in District Jail premises, Bahawalnagar, wherein Arif Shah was identified by Muhammad Ali, complainant, only. The case was investigated at different stages by S.I. Muhammad Munawwar (PW 17), A.S.I. Muhammad Ayub (P.W. 20) and Ali Raza Shah (P.W 21) and ultimately the three appellants were challaned to Court.

8. At the trial the prosecution examined 22 witnesses--the important among them are Muhammad Munir Badar, Magistrate First Class (P.W. 1) who supervised the identification parade wherein Arif Shah was correctly identified by Muhammad Ali Shah PW; Muhammad Ali Shah (PW 13) is the eye-witness about the murder of Jeera Shah and forcible abduction of Mst. Sharifan, and Bashir Shah (P.W. 14) claimed to have seen Mst. Sharifan, going in the company of the three appellants on the night or occurrence.

9. At the close of prosecution evidence the appellants when examined under section 342, Cr.P.C. denied the allegations and the learned trial Court convicted the appellants under section 302/34, P.P.C. and sentenced them as indicated above hence this appeal.

10. As would be seen from the resume of the evidence noted above, the only eye-witness of the occurrence produced by the prosecution in this case, is Muhammad Ali Shah (P.W. 13). He stated in Court that an unidentified person had killed his brother Jeera Shah by firing at him and also abducted forcibly deceased's wife Mst. Sharifan, therefore, identification of Arif Shah appellant by this witness is hardly of any significance. He also did not say that he had identified Arif Shah in an identification parade held on 10-7-1974. Admittedly Arif Shah is brother of deceased Jeera Shah's first wife and thus well-known to the witness yet he did not name him it the F.I.R. as the murderer of Jeera Shah. The only evidence or, record against the appellants now remains is that of Bashir Shah (P.W. 14) who stated that on one night at 1 a.m. he alongwith Qutab Shah and Khadim Hussain (not examined) was going from their village to Bahawalnagar along the canal service road, he had seen the appellants taking with them. Mst. Sharifan, deceased. He stated that it was a dark night and he had seen them going from a distance of 819 paces. He also admitted that Ido Khoja, Sher Shah and Wali Muhammad former husband of Mst. Sharifan were also suspected as accused in this case and were interrogated by the police. His evidence does not inspire confidence and merits to be rejected on the sole ground that according to him he learnt about the murder of Jeera Shah the very next morning following the night he saw Sharifan deceased going in the company of the appellants yet he appeared in the investigation many days after the occurrence This evidence of last seen is not sufficient to convict the appellants on capital charge.

11. From what has gone above, it is a case of no evidence, therefore, I have no option but to allow these appeals, set aside the conviction and sentence of the appellants and acquit them. They are on bail and are discharged of their bail bonds.

S. A/J-13/L Appeals accepted.